ILLINOIS POLLUTION CONTROL BOARD

November

16, 1978

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

Complainant,

v.

)

PCB 78-36

CITY OF PONTIAC,

an Illinois

municipal corporation,

and

PONTIAC REALTY,

INC.,

an

I1linoi~scorporation,

Respondents.

MR. PATRICK

J. CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF

OF THE

COMPLAINANT.

MR. ROBERT

R.

CAUGHEY, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE

CITY OF PONTIAC, RESPONDENT.

MR. JOHN BEYER, ATTORNEY AT LAW, APPEARED ON BEHALF OF PONTIAC

REALTY,

INC.,

RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by

Mr.

Werner):

This matter comes before the Board on the February

6,

1978

Complaint brought by the Illinois Environmental Protection Agency

(“Agency”) which alleged that:

(1) Respondents,

the City of

Pontiac and Pontiac Realty,

Inc.,

have allowed the use of a

sanitary sewer extension without having been issued an operating

permit by the Agency in violation of Rule 952(a)

of Chapter

3:

Water Pollution Regulations and Section

12(a)

of the Illinois

Environmental Protection Act

(“Act”)

from March 21, 1977 until

August 25,

1977; and

(2)

the Respondent,

the City of Pontiac, has

violated Special Conditions numbers

1 and

2 of Permit No.

1976-HB-

89—C and,

therefore,

Section 12(b)

of the Act from March 21, 1977

until August

25, 1977.

A hearing was held on June

23,

1978.

The

parties filed a Stipulation and Proposal for Settlement on

September

13,

1978.

The City of Pontiac

is an Illinois municipal corporation

located in Livingston County.

Pontiac Realty,

Inc.

is a

Delaware corporation which is authorized to do business in Illinois.

32—8

7

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—2—

Country Club Manor and Walden West are located within the City of

Pontiac.

A sanitary sewer extension was constructed

to serve

Country Club Manor and Walden West.

The necessary construction

permit for this sanitary sewer extension was issued by the Agency

to the City of Pontiac as Construction Permit No.

1976-HB-89-C.

The City of Pontiac allowed Pontiac Realty,

Inc.

to have the

sanitary sewer extension to Country Club Manor and Walden West

constructed under the City’s Construction Permit No.

1976-HB-89—C.

(Stipulation,

p.

1—2)

Special Condition No.

1 of the City of Pontiac’s Construction

Permit No.

l976-HB-89-C provides that

“...

the construction of the

proposed sanitary sewer shall be stopped at least 10 feet from the

connection point of

the

proposed sanitary sewer to the existing

sanitary sewer,

and said last 10 feet of sanitary sewer and the

connection to the existing sewer shall not be made until a permit

to operate the proposed sewer is issued by this Agency.”

(Stipulation,

p.

3).

Schedule C sewer extension

(construct only)

which

is incorporated by reference into Special Condition No.

1,

provides in pertinent part that:

“1.

The permit allows conditional construction only.

The

sewer may not be used nor may the discharge of any waste into or

out of the proposed sewer itself be allowed under this permit.

2.

Connection, operation or use of the sewer extension may

be done only after securing written permission in the form of a

‘Permit to operate’ from the Agency.”

(Stipulation,

p.

3-4).

Special Condition

2 of the City of Pontiac’s Construction

Permit No.

l976-HB-89-C provides as follows:

“Other than the

exceptions designated in the provisions of the Water Pollution

Regulations of Illinois no connections may be made to this sewer

project without a permit from this Agency.

In addition,

any

exception may not be made unless and until an operating permit for

the main sewers has been issued by this Agency.”

(Stipulation,

p.

4).

Since at least March 21, 1977 and until August 25,

1977,

the

10 feet of the sanitary sewer extension nearest the existing sewer

of the City of Pontiac have been installed and connected to the

existing sanitary sewer.

During this time period,

the sanitary

sewer extension has been connected to two eight unit condominiums

in Country Club Manor.

(Stipulation,

p.

4).

Pontiac Realty,

Inc.

had the two eight unit condominiums

in Country Club Manor

constructed upon land which it owned.

Prior

to March 21,

1977,

Pontiac Realty,

Inc.

sold six units

in the condominiums.

From at

least March 21, 1977 to August

25,

1977,

the six units in the

:32—88

---

—3—

condominiums that were sold were occupied,

The waste water

generated by the occupancy of the six units

in the condominiums

flowed into the sanitary sewer extension from at least March 21,

1977 to August 25,

1977.

(Stipulation,

p.

5).

It was the belief of the City of Pontiac and Pontiac Realty,

Inc.

that

a plug existed in the sanitary sewer extension which

would have prevented the waste water from the two condominiums

from entering the existing sewers of the City of Pontiac.

In

accordance with this view,

Pontiac Realty,

Inc. contacted Jack

Meece to determine the length of time for which the sanitary sewer

extension could be used for

storacje of the waste water from the

condominiums before an overflow would occur.

Pontiac Realty,

Inc.,

also,

contacted

a person about removincj the waste water from the

sewer.

(Stipulation,

p.

5—6)

It is now the opinion of the parties that the plug was either

removed by some unknown person or failed

to work properly and that

the waste water from the two condominiums flowed into the existing

sewer system via the sanitary sewer extension to Country Club Manor.

(Stipulation,

p.

6).

From March

21,

1977 to August 25,

1977, neither the City of

Pontiac nor Pontiac Realty,

Inc.

had a permit issued by the Agency

which allowed the operation or use of the sanitary sewer extension.

Pontiac Realty,

Inc.

and the City of Pontiac knew that an operating

permit was needed prior

to the use or operation of the sanitary

sewer extension.

(Stipulation,

p.

6).

From March 21, 1977 until

August 25,

1977,

the Agency would not issue an operating permit for

the sanitary sewer extension because the sewage treatment plant of

the City of Pontiac was on restricted status and any additional flow

from the sanitary sewer extension would aggravate the overloaded

condition.

(Stipulation,

p.

6).

However, both parties agree that

the increased environmental harm from the additional

flow from the

condominiums would be minimal.

(Stipulation,

p.

7).

The City of Pontiac and Pontiac Realty,

Inc.

applied for a

variance from the permit requirement

in PCB 76-250.

By order of

June

28,

1977,

the Board denied the Respondents’

request for

variance.

Pontiac Realty,

Inc. had geared the sale and occupancy

of the condominium units

to the September,

1976

(i.e.,

the

expected completion date of the improvements to the City of Pontiac’s

sewage treatment plant).

After Pontiac Realty,

Inc.

learned that

the sewage treatment plant would not be ready by September,

1976,

it only sold and allowed one additional condominium unit prior to

the time of the completion of the sewage treatment plant improve-

ments.

All other sales of condominium units after that date tied

the date of occupancy to the completion of the sewage treatment

plant improvements.

(Stipulation,

p.

7).

32—89

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—4—

If Pontiac Realty,

Inc. did not allow occupancy prior to

August 25,

1977,

it would have been required to find housing

for

six people who had sold their homes

on the expectation that they

would be able to move into the condominium units.

For a short

period prior

to December

1,

1976,

Pontiac Realty,

Inc.

housed

several people in motels

in the City of Pontiac.

Pontiac Realty,

Inc.’s reason for allowing occupancy of the condominiums and the

discharge

to the sanitary sewer extension was based on its concern

for the people who would have to have been housed

in motels and

also on the economic costs which would have been incurred by

Pontiac Realty,

Inc.

for such housing and additional feeding costs.

(Stipulation,

p.

8),

It is

stipulated that the City of Pontiac was not involved in

the construction of the sanitary sewer extension.

The City of

Pontiac obtained the construction permit in its name and then

allowed Pontiac Realty,

Inc.

to have the sewers built.

When the

City of Pontiac learned that the

10 feet of the sanitary sewer

extension nearest the existing sewer had been installed,

it

indicated to Pontiac Realty,

Inc.

that a plug should be placed

in

the sanitary sewer extension to prevent discharge to the existing

sewers.

(Stipulation,

p.

8).

It is both technically practicable

and economically reasonable to obtain a permit for the operation

of the sewers,

and the requisite Agency permit was obtained on

August

25,

1977.

(Stipulation,

p.

9).

The proposed settlement agreement states that the City of

Pontiac and the Agency agree that,

considering the nature of the

violations,

the involvement of the City of Pontiac,

and the fact

that an operating permit for the sanitary sewer extension has been

obtained,

a $250.00 penalty for violations of Rule 952(a)

of

Chapter

3 and Section 12(a)

of the Act and a separate $250.00

penalty for violating Special Conditions numbers

1 and

2 of

Permit 1976-HB—89-C

is appropriate.

Additionally, Pontiac Realty,

Inc.

and the Agency agree that

a $1,500.00 penalty for Pontiac

Realty,

Inc.’s violations of Rule 952(a)

of the Board’s Water

Pollution Regulations and Section

12(a)

of the Act

is appropriate.

(Stipulation,

p.

9).

In evaluating this enforcement action and proposed settlement,

the Board has taken into consideration all the facts and circum-

stances in light of the specific criteria delineated

in Section

33(c)

of the Illinois Environmental Protection Act.

Incinerator,

Inc.

v.

Illinois Pollution Control Board,

59

Ill.

2d 290,

319 N.E.

~~794

(1974).

On the basis of the record,

the Board finds that

the Respondents,

the City of Pontiac and Pontiac Realty,

Inc.

have allowed the use of a sanitary sewer extension without having

been issued an operating permit by the Agency in violation of

32—90

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—5—

Rule 952(a)

of Chapter

3:

Water Pollution Regulations and Section

12(a)

of the Act.

The Board also finds

that the Respondent,

the

City of Pontiac, has violated Special Conditions numbers

1 and

2

of Permit No.

l976-HB-89-C and,

therefore, Section 12(b)

of the

Act.

Accordingly,

the City of Pontiac shall pay the stipulated

penalty of $500.00 and Pontiac Realty,

Inc.

shall pay the

stipulated penalty of $1,500.00.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

It

is

t:he

Order

of

the Illinois Pollution Control Board

that:

1.

The

Ilespondents,

the

City

of

Pontiac

and

Pontiac

Realty,

Inc.,

have allowed the use of a sanitary sewer extension without

having been issued an Operating permit by

the Agency

in violation

of Rule 952(a)

of

Chapter

3:

Water Pollution Regulations and

Section

12(a)

of the Illinois Environmental Protection Act.

2.

The Respondent,

the City of Pontiac,

has violated Special

Conditions numbers

1 and 2 of Permit No. l976-HB-89-C and,

therefore,

Section 12(b)

of the Illinois Environmental Protection

Act.

3.

Within 45 days of the date of this Order,

the City of

Pontiac shall pay the stipulated penalty of $500.00 and Pontiac

Realty,

Inc.

shall pay the stipulated penalty of $1,500.00

Payment shall be by certified check or money order payable to:

State of Illinois

Fiscal Services Division

Illinois Environmental Protection Agency

2200 Churchill Road

Springfield,

Illinois

62706

4.

The City of Pontiac and Pontiac Realty,

Inc.

shall comply

with all the terms and conditions of the Stipulation and Proposal

for Settlement filed September

13,

1978,

which

is incorporated by

reference as

if fully set forth herein.

I,

Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board, h~rebycertify the above Opinion and Order were

adopted on the

f(~~”

day of

________________,

1978 by

a

vote of

~

QAL~~o~A4J4L~

Christan L. Moffett/,/Cf~rk

Illinois Pollution c~r~frolBoard

‘32—9 1